Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Zonnevylle v NSW Department of Finance & Services [2015] NSWCATAD 175 Hearing dates: 5 March 2015 Decision date: 24 August 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. The information that has been identified as 'Not Relied Upon' is to be released to the Applicant. 2. The Respondent's decision is otherwise affirmed. 3. The matter is listed for a further hearing on Tuesday 25 August 2015 at 10 am Catchwords: ADMINISTRATIVE REVIEW - government information - sufficiency of search - public access – enhance government accountability - information provided in confidence – legal privilege – independence of legal advisors - excluded information. Legislation Cited: Government Information (Public Access) Act 2009 Freedom of Information Act 1987 Cases Cited: APD v Commissioner of Police NSW Police Force [2012] NSWADT 42 Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 Office of Finance and Services v "APV" and "APW" [2014] NSWCATAP 88 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 Category: Principal judgment Parties: Peter Zonnevylle (Applicant) NSW Department of Finance & Services (Respondent) Representation: Solicitors: P Zonnevylle (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410273 REASONS FOR DECISION 1. The Applicant seeks access, under the Government Information (Public Access) Act 2009 ("the GIPA Act"), to information held by the NSW Department of Finance & Services ("the Respondent"). Background 1. In submissions to the Tribunal the Respondent's solicitor, Mr Dalla-Pozza, provided the following summary of the history of the Applicant's access application (references deleted): On 27 January 2012, the Respondent received an access application under the GIPA Act from the Applicant ("the 2012 application"). A Notice of Decision dated 10 August 2012 purported to make access to the information conditional upon payment of the remaining $292.50 of the processing charges imposed. The Applicant failed to pay the remaining $292.50 to the Respondent. On 30 January 2014, the Respondent received a second access application from the Applicant ("the 2014 application") dated 16 January 2014. On 7 March 2014 the Applicant agreed to re-scope his application to request access to the following information: "Re GIPA#13 [the 2012 application] We require all the documentation/correspondence which was approved for the GIPA#13 valid application for access to government information [part 1] Copies of all correspondence between DFS GIPA dept/Helen Dickenson and Peter Zonnevylle on and between July 27 2012 and January 2014. My emails to Dickenson - IA Unit can be omitted but all correspondence from the IA Unit/Dickenson is to be included (and proof of delivery) [part 2] The third item was narrowed to: Documentation/correspondence/ memos/ emails between your a. Director General (Coutts-Trotter?) b. Assistant Director General (Lean?) and the IA Unit with respect to their involvement or being informed with regards to GIPA#13 (such as approvals for releasing or blocking any aspect of Valid Application GIPA#13) [part 3]." On 28 May 2014, the Applicant lodged an application with the Tribunal for review of the decision with respect to the 2014 application, relying on ss. 80(c) and (d) of the GIPA Act and seeking the following orders: "1. Information requested under GIPA#17 [the 2014 application] 2013-2014 be supplied in full Includes information requested in Faxes Feb. 12, 2014 & April 9, 2014 2. Information be provided free of charge. 3. No "re-scoping of any information relating to GIPA#17 2013-2014. No redaction of information 4. All information requested be provided immediately and without delay 5. Information be provided free of charge Considering the misconduct and alleged corruption of the IA Unit we would also request Payment made for GIPA/2011 - 112/FA#13 [the 2012 application] be refunded in full + application fees (DFS + NCAT) by DFS (with interest and compensation) if this is within the terms of the action." 1. The Respondent conceded that it processed the 2012 application outside the time provided for by the GIPA Act. The effect of this is that it was not entitled to charge a processing fee. Therefore, the fact that the Applicant did not pay a processing fee was not a ground for refusing access to the documents referred to in the Notice of Decision dated 10 August 2012. Accordingly, the Respondent accepts that the documents ought to have been given to the Applicant. The Respondent subsequently provided those documents to the Applicant. 2. The Respondent received the 2014 application on 30 January 2014. On 25 February 2014 the Respondent requested that the Applicant re-scope his application. On 7 March 2014, the Applicant indicated that he would not re-scope his application. Accordingly, pursuant to sections 57(1) and 63(1) of the GIPA Act, the Respondent was deemed to have refused the application on 11 March 2014. The Applicant should have applied to the Tribunal for review by 2 May 2014. However, the time by which the Applicant was to file his application to the Tribunal was extended, under section 101(4) of the GIPA Act, to 28 May 2014 i.e. the date of filing. The redetermination 1. The information falling within the scope of the 2014 application included the information provided to the Applicant in relation to the 2012 application. The issues in dispute between the parties were therefore significantly reduced by the release of that information. 2. In its preparation for the hearing the Respondent undertook a review of its files relating to the 2012 application. That review indicated that some of the information falling within the scope of the 2012 application had not been included in the information provided to the Applicant. It also appeared to the Respondent that some of the redactions that had previously been made might no longer be necessary given the time that had passed since the determination of the 2012 application had been made. 3. On 3 November 2014 I remitted the matter for reconsideration by the Respondent to allow the Respondent to perform new searches and to reconsider the need for redactions in order to narrow the issues in dispute further. 4. The Respondent's determination included a table which set out those aspect of the access application that remained for determination as follows: a) Full financial statements for each individual Lot of Tender 1006 Workplace Supplies (March 2010). Required information: number of items sold; total value sold, management fee derived by DFS since Mar. 2010. If available: value of each product sold; number of sales & value of each sale attributed to a supplier. b) Details on the total number and/or names of companies/individuals that tendered for each Lot of Tender 1006 Workplace Supplies Mar. 2010 and for each specific Lot & sub-Lot. c) Product assessment report for products in Lot 4b of Tender 1006 Workplace Supplies Mar. 2010 (products tested; how they were tested. If possible also who did the testing). d) Documents showing how and who selected the successful suppliers for Tender 1006 Mar. 2010. e) Probity audit/report into Tender 1006 Workplace Supplies Mar. 2010. f) Complaints received by DFS concerning Tender 1006 Workplace Supplies since February 2010. Complaints received by DFS from NSW State Schools since February 2010. g) Complaints received by DFS concerning any supplier of Tender 1006 since February 2010. Details on any breaches of NSW Government code of Practice and DFS's procurement policies and procedures by Tender 1006 suppliers. h) Board meeting/reports/minutes from SCCB re Tender 1006 Workplace Supplies Lot 4B since 2009. i) Full financial statements/reports for SmartBuy relating to Tender 1006 Workplace Supplies Mar. 2010 (costs of running SmartBuy, revenue generated by SmartBuy) j) Details/description of all products supplied under Lot 4b Tender 1006 Workplace Supplies Mar 2010. k) Any memos/notes/directives/messages from DFS executives concerning the handling of complaints regarding SmartBuy/Tender 1006 Workplace Supplies since 2009. l) Any memo/notes/directives/message from DFS executives to or from DEC/DET senior staff concerning SmartBuy/Tender 1006 Lot 4b since February 2010. m) Performance reports/audits concerning Tender 1006 Mar. 2010. n) Documentation showing specific cost savings reported by DFS and audited reports proving the savings for period Jan 2010 to now. o) Memos/notes/directives/messages from DFS executives to amend & rectify any reported waste underperformance or otherwise resulting from complaints attributed to Tender 1006 Mar. 2010. p) Code of conduct breaches by any staff of DFS since 2009 associated with procurement services/assessments/SCCB 1. The Respondent interpreted the request as relating to information held by the Respondent for the period stipulated and up until 27 January 2012 i.e. to the date on which the access application was received. 2. The Respondent undertook searches in an effort to locate the information that falls within the scope of the access application. It has provided the Tribunal with a large folder full of double sided documents containing the information that was located as a result of the searches that were undertaken. 3. The new determination was made on 8 December 2014. The Respondent's decision was to release some of the requested information in full or in part. It also determined that some of the requested information was already available to the Applicant and that it did not hold some other requested information. 4. The Respondent has indicated that the redactions made included: 1. the names of some corporations and individuals. In this regard, the Respondent relies upon public interest considerations 3(a), 3(e) and 4(c)) and 4(d) of the table to section 14 to the GIPA Act. 2. Financial information of one of the suppliers' sales figures. In this regard, the Respondent relies on public interest considerations 4(b) and 4(d) of the table to section 14 to the GIPA Act. 3. Some documents were redacted in full on the basis of the conclusive presumption in clause 6 of Schedule 1 to the GIPA Act on the grounds that they contain excluded information of the Independent Commission Against Corruption ["the ICAC"]; 4. Some documents were redacted in full on the basis of the conclusive presumption in clause 5 of Schedule 1 to the GIPA Act on the ground of legal professional privilege. 1. The Applicant was not satisfied with the determination and so the matter proceeded to hearing. The issues addressed included the correctness of the decision to withhold some information and the sufficiency of the searches conducted by the Respondent. 2. Mr Andrew Johnson gave evidence relating to the searches undertaken and Mr Andrew Bauman gave evidence about the structure of the Respondent in support of the claim of legal professional privilege. The Issues remaining for determination 1. The Applicant contends that the Respondent failed to undertake reasonable searches for the requested information. The reasonableness of the search therefore needs to be considered. 2. The Applicant also contends that the withheld information should be released. There are several bases on which the information has been withheld. It is therefore necessary to consider whether the Respondent's determination to withhold or redact information is justified. The searches that were undertaken 1. Under section 53(1) of the GIPA Act, the obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. By section 53(2), an agency must undertake such reasonable searches as may be necessary to find that information. The agency's searches must be conducted using the most efficient means reasonably available to the agency. 2. The Applicant alleged that the Respondent had failed to undertake reasonable searches for the requested information. The officer responsible for preparing the 2012 decision is no longer employed by the Respondent and the Respondent conceded that she failed to locate some documents which apparently fell within the scope of that application. As noted above, the matter was remitted for redetermination and further searches were undertaken. 3. The Respondent relies on the evidence of Mr Johnson in regard to the searches that were undertaken. 4. Mr Johnson provided both open and confidential statements. Since December 2014 he has been a Ministerial Services Officer in the Ministerial Services Unit of the Respondent's Office of the Chief Executive. Prior to that he was responsible for processing GIPA applications and has maintained this responsibility as part of his new role. He was involved in processing the Applicant's access application after July 2014. He is aware that Ms Helen Dickenson, A/Right to Information Officer, was involved in processing the Applicant's 2012 GIPA application. He is also aware that Ms Dickenson is no longer employed by the Respondent. 5. Mr Johnson provided details of the steps that he took in processing the Applicant's access application. He identified the units that were most likely to hold relevant documents and sent emails to personnel in each unit, detailing the scope of the application and the response required. He provided examples of the request made and the responses received and also provided a timesheet showing the time spent processing the application. The timesheet recorded that 15 staff members, across 5 Units, took a total of 86 hours to search for documents falling within part 1 of the application. 6. Mr Johnson stated that he also searched the archived email accounts of relevant staff members who were no longer employed with the Respondent. Through those searches he was able to locate relevant information that fell within the scope of Part 2 of the application. He did not locate any documents that fell within the scope of Part 3 of the application. He recalled that it took 15 hours to process parts 2 and 3 of the application. 7. In Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5 at paragraph [11] Isenberg JM applied the approach to sufficiency of search as had been applied under the Freedom of Information Act 1987 ("the FOI Act"). In doing so, she applied decision of Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201. In Hemeon at paragraph [18], O'Connor DCJ adopted the Information Commissioner of Queensland's approach to sufficiency of search issues as discussed in Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464. In Shepherd the Information Commissioner said at paragraph [19]: [T]here are two questions which I must answer: (a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency …; and if so, (b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case. 1. I agree with that approach. In relation to the first limb of the test, it is not enough for an applicant to merely assert non-compliance on the basis of a general distrust of the agency: Camilleri at paragraph [13] citing Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195 where O'Connor DCJ stated at paragraph [69]: 69 An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which s 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence. 1. In this regard, the Respondent submits that the documents that have been identified are, on their face, responsive to the Applicant's application and that there are no reasonable grounds for thinking that other documents would exist. I accept that submission. 2. On the material that is before me I am satisfied that the searches undertaken were reasonable. It is improbable that further searches would locate additional information that falls within the scope of the access application. 3. Accordingly, I accept the Respondent's assertion that it does not hold some of the information that the Applicant requested. 4. I note that the Applicant has criticised Mr Johnson's evidence that several officers have ceased to work with the Respondent. The officers identified included a Julie King. The Applicant stated that he rang the Respondent in February 2015 and was advised that a Julie King was currently working with the Respondent. In light of that information, the Applicant expressed concern regarding the integrity of any decisions / searches / redactions / statements made by Mr Johnson. 5. In answer to that criticism, Mr Johnson's evidence was that in fact there had been two Julie Kings working with the Respondent and that one of them had left. I accept that evidence and make no criticism of Mr Johnson. Section 74 redactions 1. The information that was located is contained within documents. The Respondent contends that many of those documents also contain information that is not captured by the Applicant's request. 2. Section 74 of the GIPA Act allows an agency to delete information from a copy of a record to which access is to be provided in response to an access application because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information. The Respondent determined that information was to be deleted pursuant to section 74. 3. In its determination the Respondent identified numerous pages that contain information that is not relevant to the information requested in the access application. I have been provided with copies of those pages and I note that the Respondent has identified the information which it asserts is not relevant to the information requested in the access application. I have considered that information and I note that I agree with the Respondent's submission that the identified information does not fall within the scope of the access application. Accordingly, that aspect of the determination should be affirmed. 4. I note that however, that it is open to the Respondent to nevertheless provide that information to the Applicant but it is not obliged to do so. Other redactions 1. Clause 4 of Schedule 4 of the GIPA Act defines personal information as information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 2. Under section 5 of the GIPA Act, there is a presumption in favour of disclosing government information. Section 12(1) of the GIPA Act states there is a general public interest in the disclosure of government information. Section 12(2) provides a number of examples of public interest considerations in favour of disclosure of information and also provides there is no limit on other considerations in favour of disclosure of government information that may be taken into account. 3. Under section 9(1) of the GIPA Act, the Applicant has a legally enforceable right to be provided with access to the information sought, unless there is an overriding public interest against disclosure of the information. 4. In making a decision, agencies must apply the public interest test under section 13, which provides there will only be an overriding public interest against disclosure where public interest considerations in favour of disclosure are, on balance, outweighed by those against disclosure. 5. The public interest considerations listed in section 14 and schedule 1 of the GIPA Act are the only considerations that may be taken into account when determining whether there is an overriding public interest against disclosure of government information. Public interest considerations in favour of disclosure 1. In its reasons for decision relating to the redetermination the Respondent discussed a number of public interest considerations in favour of disclosure as set out in section 12 of the GIPA Act. I agree that those considerations are relevant to this matter. 2. The Respondent's reasons stated: 1. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive or informed debate on issues of public importance. OFS has disclosed information which relates to contract 1006. Such information includes how suppliers were selected for the contract and probity reports on the efficacy of the contract. OFS acknowledges there is a public interest in promoting open discussion on the value and cost of large government contracts. Given the age of this information, we have given significant weight in favour of providing information which will enhance government accountability in regards to procurement practices. 2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies, and practices for dealing with members of the public. OFS has disclosed information which concerns complaints made to OFS concerning contract 1006 and processes utilised in handling such complaints. OFS acknowledges there is a public interest to inform the public about the operations of an agency, in particular NSW Procurement and the former State Contracts Control Board. Given the age of this information, we have given significant weight in favour of providing information which will demonstrate to the public how those agencies dealt with complaints and how they responded. 3. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. OFS has disclosed information which shows how it has provided oversight over the expenditure of public funds in relation to contract 1006. We acknowledge that there is a public interest in providing information that shows financial information concerning costs of government contracts like 1006. Given the age of this information, we have given significant weight in favour of releasing it. 4. The information is personal information of the person to whom it is to be disclosed. OFS has disclosed information that directly concerns the applicant. This information includes complaints made by the applicant and subsequent responses from OFS. We have given significant weight in favour of providing the applicant's own information to him. 5. Disclosure of the information could reasonably be expected to reveal or substantiate that an agency has engaged in misconduct, or negligent, improper or unlawful conduct. OFS believes the overall intent of the applicant requesting information under the GIPA Act is to reveal or substantiate that OFS has engaged in misconduct or negligence or improper conduct. OFS has given significant weight to this public interest consideration in favour of disclosure. 1. I generally agree with that position. Public interest considerations against disclosure 1. The Applicant has been provided full access to the information that has been identified as falling within Parts 2 and 3 of the access application. The Respondent found no public interest considerations against disclosure in relation to that information. 2. As noted above, the public interest considerations listed in the table to section 14 and schedule 1 of the GIPA Act are the only considerations that can be taken into account as public interest considerations against disclosure, for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Respondent contends that the following public interest considerations against disclosure in the Table to section 14 of the GIPA Act are applicable. Clause 3 - Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: (a) reveal an individual's personal information … e) reveal false or unsubstantiated allegations about a person that are defamatory ... Clause 4 - Business interests of agencies and other persons There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects: … (c) diminish the competitive commercial value of any information to any person, (d) prejudice any person's legitimate business, commercial, professional or financial interests … 1. The Respondent also contends that some of the information is subject to a claim for legal professional privilege and therefore there is a conclusive presumption of an overriding public interest against disclosure pursuant to Clause 5 of Schedule 1 to the GIPA Act. Clause 5 provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. The Respondent also contends that some of the information falls within the scope Clause 2 of Schedule 2 to the GIPA Act. This is 'excluded information' and therefore the conclusive presumption in clause 6 of Schedule 1 to the GIPA Act applies. Clause 2 provides: SCHEDULE 2 – Excluded information of particular agencies Note : Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. ... 2 Complaints handling and investigative information ... The Independent Commission Against Corruption - corruption prevention, complaint handling, investigative and reporting functions. … Clause 3(a) - Redactions of information that could reasonably be expected to reveal personal information Clause 3(e) - Redactions of information that could reasonably be expected to reveal false or unsubstantiated statements that are defamatory 1. The information that has been redacted relates to two complaints. One of the complaints was made in relation to a decision to permit a supplier to supply additional items to what had been tendered for on the contract. The other complaint concerned the decision of the agency to impose a management fee. 2. The redacted information included the details of the company and individual who had made the first complaint; the details of the company and individual who were the subject of the first complaint; and the name of the company and the individual who had made the second complaint. The redacted information includes such details as a name, address, email address phone number and fax number. 3. The Respondent submits that these names are "personal information" for the purposes of clause 3(a) of the table to section 14 and schedule 1 of the GIPA Act in that, even if the name itself is not personal information, it connects an individual who authored a complaint with the fact that they had made a complaint. The Respondent relies on views that Deputy President Hennessy expressed in Gilling v General Manager, Hawkesbury City Council [1999] NSWADT 43 where she stated: 42 In order to determine whether the names and addresses constitute personal affairs in this case, the context in which they appear must be examined. The names and addresses were provided by local residents as part of a letter of objection to council in relation to a development application. The authors wrote the letters in their capacity as private individuals concerned about a proposed development in their area. Unlike the situation in Perrin's case [(1993) 31 NSWLR 606], this information was not provided in the course of the performance of any public duty or responsibility. 43 In Perrin's Case Kirby P stated that perhaps the police officer's private address could be considered as part of their personal affairs (at 625). Similarly in Commonwealth of Australia and Road Traffic Authority (1989) 19 FOI Rev 7 the disclosure of the addresses of motor vehicle owners held by the public vehicle registration body was found to relate to the owners' "personal affairs." Even if a person's name in isolation is not necessarily part of their personal affairs, their name, linked with their address, enables them to be contacted by people who have access to that information. This contact may be unwelcome and constitute an invasion of their privacy. 44 For these reasons I find that in the context of this case the name and address of each of the four objectors is material concerning their personal affairs. 1. The Respondent also relies on the decision in APD v Commissioner of Police NSW Police Force [2012] NSWADT 42 where the Tribunal held that the particulars of a complainant was "personal information as defined in section 4 of the GIPA Act and that disclosure could reasonably be expected to reveal that information. 2. In the present matter the Respondent submits that disclosure of the corporate names would result in the disclosure of personal information because identification of the company will enable the identity of the individual who made the complaint to be ascertained. The Respondent relies on the Appeal Panel decision in Office of Finance and Services v "APV" and "APW" [2014] NSWCATAP 88 which dealt with the identically worded definition of "personal information in section 4(1) of the Privacy and Personal Information Protection Act 1988. The Appeal Panel held that the identity of an individual will be "reasonably identifiable" from the information if an internet search performed using the information would lead to the identification of the individual. 3. Mr Dalla-Pozza's confidential statement sets out the details of an internet search undertaken using the corporate names that have been redacted together with other information appearing on a website. Mr Dalla-Pozza's evidence is that the identities of the individuals were revealed by the internet search. 4. The Respondent submits that in turn, this would reveal the name of the complainant and the fact that the individual had made a complaint. Therefore, disclosure of the corporate names would disclose the personal information of the persons who had made the complaints and the persons against whom the complaints were made. 5. I accept Mr Dalla-Pozza's evidence. I agree that the identity of an individual will be "reasonably identifiable" from an internet search performed using the information. 6. In relation to the redactions of the names of individuals who were the subject of a complaint, the Respondent also relies on clause 3(e) of the table to section 14 and schedule 1 of the GIPA Act. It submits that the complaints are unsubstantiated and defamatory. 7. Judicial Member Molony considered clause 3(e) in Hurst v Wagga Wagga City Council [2011] NSWADT 307. He stated at paragraphs [83] – [84]:- 83. This is a provision new to GIPA. In helpful submissions on the issue the Information Commissioner said - "49 This is a new consideration. There is no equivalent to it in the old FOl Act (NSW), the Commonwealth, WA or Qld Acts (those most similar to the GIPA Act). However, section 113 of the GIPA Act, which provides protection from actions in defamation, is in almost identical terms to section 64 of the FOl Act. . The decision of the Court of Appeal in Ainsworth v Burden [2003] NSWCA 90; (2003) 56 NSWLR 620 ("Ainsworth") construed section 64 of the FOl Act and remains authoritative. In Ainsworth, the Court found that "[t]he statutory language must be construed in the context of the general principles of the law of defamation" (at 622 per Handley JA). 50. To demonstrate that this consideration is a relevant consideration in the application of the public interest test, the respondent must show that the information to which the applicant seeks access contains false and unsubstantiated allegations against a person, and that those allegations are defamatory. 51. The respondent states that it has investigated and found that the allegations made by the applicant were unsubstantiated. On this basis, it dismissed the allegations (Statement of O'Leary, 16/05/2011, Annexures R & S). ... 52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury's Laws of Australia (chapter written by David Rote) states (with notes removed): A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by: (1) disparaging him or her; (2) causing others to shun or avoid him or her; or (3) subjecting him or her to hatred, ridicule or contempt. The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff. 53. The respondent has not considered whether the allegations are defamatory. 84. The construction pressed by the Information Commissioner is broadly consistent with that suggested by the editors of Robinson, NSW Administrative Law (Thompson Reuters) at 50.7270. I accept it. 1. The Respondent submits that there is no evidence to show that the complaint has been upheld by the ICAC or any other body. Mr Johnson's evidence indicates that an attempt was made to obtain clarification from the ICAC and that it was unable to offer advice in relation to the issue. The Respondent submits that therefore, on the information available to the Tribunal, the complaint is unsubstantiated. 2. The Respondent further submits that the complaint contains allegations of impropriety against the corporation in question and individual(s) connected with that corporation. A statement will be defamatory if it has the tendency to adversely affect a person's reputation (or tends to cause the person to be shunned or avoided). The Respondent concedes that the substance of the allegations has been released. However, it submits that revealing the names that have been redacted would cause the allegation to become defamatory because the subject of the comments would be able to be identified. 3. The Respondent submits that clause 3(e) applies to statements made about corporations. Therefore, it is not necessary to draw a distinction between the redactions of the name of the individual and the name of the corporation. It submits that clause 3(e) focuses on the character of the representation (i.e. whether or not is defamatory), not the availability of the cause of action in respect of the representation. 4. In the alternative, the Respondent submits that the release of the redacted information regarding the corporate name will nonetheless "reveal an allegation about an individual which is defamatory". This is because the release of the identity of the company would permit the identification of the individual from that individual's connection with the company. The Respondent submits that is likely that at least some members of the public would have sufficient information to identify the individual. Clause 3 Consideration 1. It is necessary to balance the public interest considerations. The Tribunal's task is to determine whether there is an overriding public interest against disclosure of the information in accordance with the GIPA Act, paying due regard to the principles in section 16. This requires the Tribunal to consider whether, on balance, the public interest considerations against disclosure outweigh those in favour of disclosure. Unless there is an overriding public interest against disclosure the presumption in favour of disclosure applies: section 5 GIPA Act. 2. The GIPA Act does not provide a set formula for working out the weight of public interest considerations for or against disclosure, or deciding if one set of considerations outweighs the other. Each matter is different. The balancing of competing interests "is a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation: Hurst v Wagga Wagga City Council at paragraph [70]. 3. There is an overriding public interest against disclosure of government information if the public interest considerations against disclosure, on balance, outweigh the public interest considerations in favour of disclosure: GIPA Act, section 13. 4. I have considered the information that the Respondent has redacted pursuant to clause 3 of the table to section 14 along with the confidential evidence that the Respondent has filed. Having done so, I am satisfied that the context in which the redacted information exists is such that it is personal information for the purposes of Clause 3. I agree with the Respondent that release of the redacted information would allow the identification of individuals who had made complaints and the persons against whom the complaints were made. I also accept the possibility that the release of personal information contained in representations made to the government might impact on the willingness of people to express their views in the future. In the circumstances I think that there is minimal public interest in disclosing this personal information and therefore it should be treated with a degree of confidentiality. 5. I also agree with the Respondent in relation to the clause 3(e) submission. In my view, this is a significant consideration to be taken into account when engaging in balancing the competing considerations in favour of, and against, release of the information. I am satisfied that the release of the redacted information would revealing the redacted names and in turn would cause the allegation to become defamatory because the subject of the comments would be able to be identified. 6. In my view, given the fact that the majority of the information sought has been released and the limited information that has been redacted, there is little, if any public interest in the disclosure of the redacted names and contact details. I am satisfied that the public interest considerations against disclosure in relation to that information outweigh those in favour of disclosure because of the likelihood that individuals could be identified by the disclosure and the potential risk to the individuals concerned from that identification. 7. It follows, in my view, that the Respondent's determination to redact the individual and corporation names was the correct decision and it should be affirmed. Clause 4 of the Table to section 14 1. The Respondent has identified public interest considerations in clauses 4(c) and 4(d) of the Table to section 14. These require consideration of whether disclosure of the information could reasonably be expected to diminish the competitive commercial value of any information to any person or to prejudice business affairs. The majority of the redactions are of the names of companies involved in the tender process. 2. Two third-parties have expressed the view they do not want information to be released where the information might prejudice their business or commercial interests. 3. The Respondent accepts that the names of companies do not fall within a public interest consideration against disclosure. However, it submits that the context in which this information appears causes some of the information to fall within a public interest consideration where the disclosure of the name links the company to particular information that would expose the strengths and weaknesses of the company or affect the reputation of that company. 4. The Respondent has conceded that some of the redactions that have been made cannot be maintained because of information that is already publicly available. The Respondent concedes that an overriding public interest consideration against disclosure does not arise in respect of this information. In the filed material it has identified information that falls within that category as 'Not Relied Upon' and consents to the release of that information. 5. I have considered that information that the Respondent has identified as falling within this category and I agree with its assessment. In my view, the information that has been identified as 'Not Relied Upon' should be released to the Applicant. 6. However, the Respondent submits that the remaining redactions are warranted because the redacted names connect the companies with information the disclosure of which could reasonably be expected to prejudice a company's business affairs. It submits, for example, that the information might include: * information about how a company performed in an assessment process; * information about how a company was assessed in the tender process; and * specific information about a company which may be used by its competitors in future tenders. 1. The Respondent submits that the redactions falling within these categories were correctly made. 2. Mr Johnson explained that not all of the companies concerned have been consulted as to whether they objected to the release of this material. This was because the names of the competitors are very often intertwined in the same document, so that the disclosure of the information to a particular tenderer would reveal the identities of the other tenderers. Consultation would have required the creation of multiple versions of the documentation each differently redacted so as to disclose the information the subject of the consultation but not any of the other information. 3. The Respondent relies on views expressed by the Tribunal's President O'Connor DCJ in Cianfrano v Director General, Department of Commerce and anor [2005] NSWADT 282 in relation to documents sought relating to a tender process which had concluded. The President stated: 37 SML does not wish to have revealed to the outside world its offers and their foundation. It was involved in a confidential negotiating process. The ultimate outcome is known. 38 There would, I consider, be an adverse effect on the affairs of private bidders as well as on the agencies with which they deal if details of unsuccessful offers and their foundation were to be revealed. It is generally not desirable that a negotiation process be held out later to public view especially if the final outcome is known. I am satisfied that disclosure: could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. 1. The Respondent submits that the redactions which are maintained either connect the company with information that shows how the tenderers were assessed in the assessment process, with information showing how those companies performed in relation to other tenderers or to other specific information about that company. I have considered the redacted information in the context of this submission. I am satisfied that the redacted information is as described by the Respondent. Clause 4 Consideration 1. In my view, the redacted information includes details about the tenderer's strengths and weaknesses, or specific information about a company, which might be used by that company's competitors in future tenders. For those reasons I am satisfied that disclosure of the information could reasonably be expected to 'diminish the competitive commercial value of any information to any person' or to 'prejudice any person's legitimate business, commercial, professional or financial interests'. 2. I have balanced these public interest considerations against those in favour of disclosure. I am satisfied that the potential prejudice to the third-parties' legitimate interests is a significant consideration to be taken into account when engaging in balancing the competing considerations in favour of, and against, release of the information. In my view that there is little, if any, public interest in the disclosure of the redacted information. Therefore, I am satisfied that the public interest considerations against disclosure of that information outweigh those in favour of disclosure. 3. It follows, in my view, that the Respondent's determination to redact the information pursuant to Clause 4 was the correct decision and it should be affirmed. Clause 5 of Schedule 1 to the GIPA Act 1. Clause 5 of Schedule 1 to the GIPA Act provides: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5. 1. I discussed this provision and the law in relation to claims for client legal privilege in my decision in Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10 from paragraph [60]. I will not repeat that discussion here. 2. The Respondent contends that some withheld documents attract legal professional privilege in its favour. The Respondent has considered waiving this privilege but has decided not to do so. The Respondent submits that there is a conclusive presumption that there is an overriding public interest against disclosing this information. 3. The Applicant has disputed the Respondent's claim on the basis that the legal officers involved do not have the requisite independence. He questions the integrity of 'legally independent advice' received or given by the Respondent's Legal Services Division. 4. He contends that there are issues in relation to the independence of the Respondent's former General Counsel and asserts that the General Counsel gave misleading & incorrect advice regarding a Workplace Supplies tender. He also alleges that the General Counsel has been implicated in 'negligent conduct resulting in maladministration (waste of public funds)' and that therefore the General Counsel had 'a substantial motive to prevent / obstruct / delay the information sought by the Applicant'. He contends that as the General Counsel was not impartial, the Respondent's claim of legal privilege cannot succeed. 5. The Respondent relies on Mr Bauman's evidence in regard to the issue of the independence of the Respondent's legal officers. The Evidence of Andrew Bauman 1. Mr Bauman is a Paralegal officer in the Respondent's Legal Services, Legal, Audit and Risk, Corporate Services Division. He has held this position since 5 January 2015. In his statement Mr Bauman gave evidence in regard to the structure of the Legal Services Business Unit. He stated that the Ministerial Services Unit is responsible for managing applications made under the GIPA Act. The Legal Services Business Unit is responsible for providing in-house legal services to the Respondent and it provides frank and independent advice. 2. There are approximately 11 legal officers currently employed in the Legal Services Business Unit and all are required to hold current practising certificates. He stated that he is aware that Rosemary Chandler and Elizabeth Stewart are currently employed as legal officers within the Business Unit, and that Anthony Lean was previously the General Counsel within the Business Unit. 3. Mr Bauman stated that all files held by the Business Unit are dealt with securely. In the absence of a lawful basis for disclosure, only staff who are assisting the Business Unit, and the Business Unit members themselves have access to the files. The confidentiality of the Business Unit's advice is reflected in the Respondent's Legal Policy, a copy of which is annexed to his statement. Mr Bauman noted: As per page 3 of the policy, only people employed as legal officers within the Office of Finance and Services are permitted to provide legal advice, in part to ensure that the legal advice is "afforded legal professional privilege protections". The confidentiality of such legal advice is reinforced in page 8 of the policy, which states that "legal advice is provided for internal use. It should not be circulated outside of DSTA [the Department of Services, Technology and Administration]". 1. Mr Bauman's evidence was not tested in any significant way under cross-examination. The Applicant has not presented any evidence that raises doubt in regard to the manner in which the Respondent's Legal Services Business Unit conducts its business. 2. On the basis of Mr Bauman's evidence I am satisfied that the Respondent's Legal Services Business Unit has sufficient independence for legal professional privilege to attach to the information. 3. I have examined the documents that the Respondent has identified as attracting legal privilege and as falling within the scope of Clause 5 of Schedule 1 to the GIPA Act. I am satisfied that on the face of those documents each is of the kind that would normally attract legal privilege. They are clearly communications to and from lawyers which contain requests for or the provision of legal advice. I am satisfied that the documents were created for the dominant purpose of providing legal advice. 4. I must therefore consider the Applicant's assertion in regard to the Respondent's former General Counsel and whether or not the documents were prepared for any improper purpose. 5. An improper purpose is not to be inferred lightly. Mere allegation is not enough. If the purpose of a decision has to be ascertained by inference, a presumption of regularity operates: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 per Gaudron J at 671-2. 6. On their face, it is clear that the documents have not been created for an improper purpose. In my view, the withheld documents attract legal professional privilege. 7. There is no evidence to suggest that the privilege that attaches to the communications has been waived. In my view, it follows that the relevant documents are subject to legal professional privilege, within the meaning of clause 5 of Schedule 1 to the GIPA Act. There is therefore a conclusive presumption that there is an overriding public interest against disclosure of the information. Accordingly, the correct and preferable decision is that the Respondent's decision to not provide access to those documents ought to be upheld. 8. For completeness, I note that in the case of at least one of the documents the information would also fall within the scope of Clause 6 of Schedule 1 to the GIPA Act. Clause 6 of Schedule 1 to the GIPA Act 1. As noted above, it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency. In that regard, information that relates to the corruption prevention, complaint handling, investigative and reporting functions of the ICAC is 'excluded information': see Clause 2 of Schedule 2 to the GIPA Act. 2. The Respondent contends that some of the withheld information falls within the scope of these provisions. I have been provided with a copy of that information on a confidential basis. 3. I recently considered Clause 2 of Schedule 2 in the matter of Watson v NSW Trustee and Guardian [2015] NSWCATAD 139. I stated at paragraphs [10] – [16]: 10 Section 43 of the GIPA Act provides: 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 11 In order to determine whether the withheld information is 'excluded information' it is necessary to determine whether the information 'relates to' a function specified in this Schedule 2. 12 The TAG contends that all documents falling within the scope of the access application relate to the functions of either the Ombudsman, the office of the Legal Services Commissioner, or the TAG as specified in Schedule 2. 13 The expression "relates to" has been considered in numerous decisions. The term has been held to be one of broad import: see Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111. This Tribunal has held that the concept of information "relating to a function" of an agency should be applied generously: see for example Miller v Director of Public Prosecutions [2012] NSWADT 38 at paragraphs [19] - [23], citing Cianfrano v NSW Ombudsman [2007] NSW ADT 273 and Raethel v Director-General, Department of Education & Training [1999]). 14 In DF v Director General, Attorney General's Department [2002] NSWADT 164, the Tribunal's President considered documents related to the DPP's prosecuting functions. The President noted at paragraph [9] that: "The applicant, as is usual in these cases, is faced with the difficulty that he can only make general submissions as to the applicability of the heads of exemption claimed for the documents. The documents have been supplied to the Tribunal as a confidential exhibit. The Tribunal has inspected the documents in light of the exemptions relied upon." 15 The President was satisfied that an advice to the DPP from the relevant Crown Prosecutor in relation to the conduct of a trial was "reasonably connected with the conduct of the 'prosecuting functions' of the DPP". In relation to the scope of the exemption his Honour then said: 23 The Tribunal is satisfied that it was a document of a routine kind prepared for the DPP in accordance with office practice where a particular type of outcome occurs in a criminal trial (here acquittal by direction). I am satisfied that the entire advice is reasonably connected with the conduct of the `prosecuting functions' of the DPP, and is exempt from FOIA by virtue of s 9, Schedule 2, item (ii). 24 It is not necessary, in my view, in this case to attempt an exhaustive definition of the meaning of `prosecuting functions' in order to reach that conclusion. This is not a document which might be said to lie at the boundary between the `prosecution functions' and the FOIA-covered `non-prosecution' functions of the Office. In the practice of criminal law, the term `prosecution' refers to the conduct of criminal proceedings (see, for example, Osborn's Concise Law Dictionary, def. of `prosecution'; Mozley and Whiteley's, Law Dictionary, def. of `prosecution'.) `Prosecution' in the context of Schedule 2, item (ii) refers at least to the conduct of criminal proceedings by the Director, his officers and other persons (such as private practitioners) engaged by him. 25 The `functions' connected with prosecution extend, in my view, beyond the in-court conduct of the prosecution to cover all the professional and administrative tasks connected with the preparation of a case for trial, and its outcome including review of the outcome and the taking of any further action in respect of the case (such as a decision to appeal, and the appeal). (The document contains references to individuals the release of which would, I am satisfied, involve the unreasonable disclosure of information concerning their personal affairs: cl 6(1). If this were the only ground relied upon, the document could be disclosed with appropriate deletions.) 16 In each case, the question is the extent to which the information in issue has a connection with the specified function. … 1. In the present matter, it is clear from the face of the withheld documents that the information relates to the corruption prevention, complaint handling, investigative and reporting functions of the ICAC. As such it is 'excluded information'. 2. There is therefore a conclusive presumption that there is an overriding public interest against disclosure of the excluded information. Accordingly, the correct and preferable decision is that the Respondent's decision to not provide access to those documents ought to be upheld. Conclusion 1. I am satisfied that the searches undertaken by the Respondent to locate information that falls within the scope of the access application were reasonable and that it is unlikely that further information is held. Therefore, the Respondent should not be required to undertake further searches. 2. Having considered all the issues and evidence in this matter it is my view that, with a limited exception, the Respondent's decision to not provide access to the withheld information is the correct and preferable decision. It is therefore affirmed. 3. The limited exception is that information that the Respondent has identified as 'Not Relied Upon'. That information should be released to the Applicant. Further issues 1. I note that the Applicant has expressed concern and raised numerous issues in relation to the Respondent's conduct in processing his various access applications. He has requested that the Tribunal take action pursuant to section 112 of the GIPA Act. Section 112 provides: 112 Report on improper conduct If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency. 1. The Tribunal's powers in relation to section 112 are a matter of some disagreement between the parties. The matter is listed for further hearing in relation to that issue. Order 1. The information that has been identified as 'Not Relied Upon' is to be released to the Applicant. 2. The Respondent's decision is otherwise affirmed. 3. The matter is listed for a further hearing on Tuesday 25 August 2015 at 10 am. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2015